Howard Greer Custom Originals v. Capritti

EDMONDS, J.

Howard Greer Custom Originals sued J. C. Capritti, doing business under the fictitious name of Rose Marie of California. He has appealed from an order denying his motion to set aside a default judgment entered against him.

The complaint, to recover certain personal property and damages for breach of contract, named a number of defendants fictitiously. Prior to service of the summons, an amended complaint was filed and a writ of attachment issued against the property of “J. C. Capritti, d.b.a. Rose Marie of California. ’’

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The writ was levied upon furniture, fixtures and merchandise “belonging to the defendant.” As an individual, he filed an undertaking to discharge the attachment. Rose Marie of California, a corporation, “sued as Black and White Company” appeared by answer and also filed a cross-complaint.

Later the summons on the amended complaint was served upon Capritti, and no appearance having been made by him within the time allowed therefor, his default was entered. Meanwhile demurrers to the answer and cross-complaint of the corporation were sustained with leave to amend. Shortly thereafter the corporation filed a petition in bankruptcy.

Capritti then moved to set aside the default which had been entered against him, specifying as the ground for such relief “mistake and surprise.” The motion was supported by an affidavit averring that he “was under the impression that . . . [the answer filed on behalf of the corporation] . . . would be sufficient and that there was no need for affiant to file an Answer in his individual and personal capacity. ’ ’ He also declared that when he discovered the entry of default, he requested counsel for the corporation to prepare an answer for him. However, the record shows that his answer was filed after the default was entered.

The motion was denied and judgment rendered against Capritti. He immediately filed a notice of motion to have the judgment set aside upon the ground that it was taken against him “through inadvertence and surprise.” In an affidavit stating facts assertedly justifying such relief, he gave as the ground for his “impression” in regard to the sufficiency of the answer of Rose Marie, assurance by the corporation’s attorney “that plaintiff and plaintiff’s counsel understood the situation. ’ ’ He added that he has a meritorious defense to the action in that he was plant manager of the corporation but at no time did he do business as an individual under its name.